The U.S. Supreme Court just decided its first Second Amendment case in nearly a decade, and New York was at the center of it.
In New York State Rifle & Pistol Association v. City of New York, the state Rifle and Pistol Association – along with three gun owners – sued New York City in 2013 over a regulation that prohibited people with a license to keep a gun in their home from transporting it to other locations outside the city – like a firing range or a second home. The plaintiffs argued that the regulations violated their Second Amendment rights to bear and keep arms. They cited specifically the Supreme Court’s 2008 decision in District of Columbia v. Heller, which affirmed the right of individuals to keep arms in the privacy of their own homes but clarified that the sale, possession and carrying of guns could be regulated.
Lower courts ruled against the state Rifle and Pistol Association in 2015 and 2018, essentially finding that the city’s rule did not violate gun owners’ Second Amendment rights. But last spring, the Supreme Court agreed to hear the case, which is often referred to in short as “NYSRPA.” By then, the Supreme Court had gained a new conservative member in Justice Brett Kavanaugh. In a move some have described as a move to prevent the increasingly conservative court from exploring the scope of Second Amendment rights, New York City repealed their own regulation, allowing gun owners to transport guns to homes or shooting ranges outside the city. The city took that action at the urging of some gun control groups who wanted to avoid a new ruling on the Second Amendment from a conservative Supreme Court. With the regulation in question suddenly gone, the city argued that the case was now moot.
The plaintiffs argued that despite the fact that the regulation restricting transportation of guns no longer exists, the case was still live because of the possibility that plaintiffs could seek damages for having had their Second Amendment rights violated while the regulation was in place.
But New York and those gun control groups got what they wanted. The Supreme Court dismissed the case on Monday, finding that it was, in fact, moot because the regulation was no longer in place. Six justices – Chief Justice John Roberts, Kavanaugh and the Court’s four liberal members – voted to dismiss the case. Conservative Justice Samuel Alito wrote a dissenting opinion calling the issue not moot, joined by Justices Clarence Thomas and Neil Gorsuch. Though Kavanaugh agreed the case was moot, he also wrote that he was concerned that lower courts weren’t properly applying the Heller decision recognizing individuals’ rights to gun ownership.
To explore the decision and how it will affect New York’s strict gun control laws, City & State reached out to four experts on the subject: Robert Spitzer, a politics professor of SUNY Cortland and author of five books on gun policy, including “The Politics of Gun Control”; Joseph Blocher, a professor at Duke Law School; Eric Ruben, assistant professor of law at Southern Methodist University’s Dedman School of Law and a fellow at the Brennan Center for Justice; and Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. (In the interest of full disclosure, Blocher and Ruben together submitted an amicus brief in the case on behalf of neither party, which discussed Second Amendment doctrine as it applies to lower courts.
Responses have been edited for length and clarity.
Should the Supreme Court have dismissed this case? Why or why not?
Ilya Shapiro: No it shouldn’t have, for two reasons. First, the plaintiffs didn’t get all the relief they could have. Second, the Court doesn’t typically allow parties to avoid review by simply changing their policy; New York was perfectly happy with its rule until the Supreme Court granted certiorari.
Robert Spitzer: The Court decision to dismiss was correct. By the standard definition of mootness, there was no longer a basis for proceeding with the case, because the New York City law that was challenged was repealed. That is, there was no longer a live case or controversy for the Court to consider.
Eric Ruben: The Constitution grants the Supreme Court power to decide cases and controversies, not already resolved disputes that appear more hypothetical than real. In NYSRPA, the firearm policy at issue – which barred the petitioners from taking their handguns to second homes and shooting ranges outside the city – was repealed and then preempted by state law. That was precisely what the plaintiffs sought in their complaint, albeit by court order, not a democratic process. There are exceptions to the Supreme Court’s mootness doctrine, but none clearly applied. And the petitioners attempted to add new issues to the case at the eleventh hour, but a majority of the justices were disinclined to consider them before they were considered by the lower courts. The Court was well within its mootness precedent when it declined to reach the merits, instead sending the case back to the lower court for further proceedings.
Joseph Blocher: Dismissing the case was the right decision. The petitioners had challenged a New York City rule that essentially forbade people from transporting their weapons outside the city – to a second home or a shooting range, for example. But that rule was repealed and later replaced by a state law that allows for transport, giving the petitioners everything they requested in their lawsuit. That means that the case became legally “moot” – there was nothing left for the justices to do. I’m sure that there will be challenges to the new law, but those have to be litigated in the lower courts first.
What does the result of this case tell us about the new makeup of the Supreme Court and how it will decide on Second Amendment cases in the future?
Joseph Blocher: I don’t think we learned too much that we didn’t already know. Justices Alito, Thomas and Gorsuch wrote a dissenting opinion addressing the merits of the Second Amendment claim, and it’s not surprising that they would’ve struck down the New York City rule. Justice Kavanaugh didn’t join their dissent, but he did suggest that the Court should take another Second Amendment case soon. I suspect that he’ll get his wish, perhaps as early as next year. Based on their prior opinions, I think it’s safe to say that all four of those Justices are sympathetic to gun rights claims. The big question remains Chief Justice Roberts. He didn’t write an opinion in this case, nor did he say anything at oral argument that would indicate his views.
Ilya Shapiro: Not much that we didn’t already know. Justice Kavanaugh indicated strongly that he was with the dissenters on the merits of the question and Chief Justice Roberts was in the majority in both Heller and McDonald v. Chicago (the last two gun rights cases), so it’s pretty clear that there’s majority against the sorts of bans and extreme restrictions that are being litigated.
Robert Spitzer: There is clearly a strong sentiment among several justices to revisit the definition of Second Amendment rights, and to expand the definition of those rights. It is unclear if there are five votes to significantly expand those rights, however. Chief Justice Roberts will likely be the deciding vote on this matter. While the degree of expansion they ultimately settle on is in dispute, I am convinced that they will find five votes to do so in one or more of the 10 Second Amendment cases they will be reviewing shortly.
Eric Ruben: The fact that the Supreme Court accepted this case in the first place is telling. After Heller, there were over 1,000 Second Amendment challenges in the lower courts and the Court regularly refused to intervene. Then, shortly after Justice Kavanaugh replaced Justice Anthony Kennedy, the justices accepted this case, suggesting that the change in personnel might have increased the Court’s appetite to decide Second Amendment disputes.
It is also telling, however, that a majority of the justices, including Chief Justice Roberts and Justice Kavanaugh, felt restrained by mootness doctrine and opted to remand the case. Justice Alito’s dissent provided a roadmap the Court could have taken to declare the case live. The restraint of six justices, despite Alito’s roadmap, suggests that the recomposed Court is still unwilling to expound on the Second Amendment if doing so would risk other important constitutional principles.
More significantly, it takes five votes to reach a Supreme Court majority, and Chief Justice Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan did not join either Kavanaugh’s short concurrence or Alito’s longer dissent. Roberts’ views on the right to keep and bear arms, in particular, will continue to garner speculation. He will likely be the deciding vote in future Second Amendment cases.
To what extent could potential challenges that reach the Supreme Court affect New York City’ or New York state’s relatively strict gun control measures in the future?
Eric Ruben: It appears that 10 cases that were on hold pending the outcome in NYSRPA have been distributed for this Friday’s Supreme Court conference (when the justices vote on whether to hear new cases). Two issues that stand out among those 10 cases are the constitutionality of (1) New York-style bans on assault weapons and large-capacity magazines and (2) New York-style restrictions on carrying handguns in public.
Every federal appeals court that has ruled on assault rifle and large-capacity magazine bans has concluded that they comply with the Constitution. But Judge Kavanaugh dissented in one of those opinions and there were vociferous dissents in others.
Meanwhile, all but one of the federal appeals courts that have ruled on restrictive policies for the issuance of concealed carry permits have upheld them. The one outlier is the influential D.C. Circuit, however, which concluded that law-abiding adults have a presumptive right to carry handguns in public places.
If the Supreme Court bucks the lower court consensus and strikes down assault weapon bans or restrictions on public carry, that outcome would require New York to roll back gun laws like the SAFE Act passed after the mass shooting at Sandy Hook Elementary School.
Ilya Shapiro: The Court has about 10 petitions in Second Amendment cases pending; I’m not sure if any of them are from New York, but they’ll certainly be deciding issues in a way that will establish precedent to challenge some of New York City’s draconian rules – such as the virtual ban on carrying a firearm for self-defense.
Joseph Blocher: New York has some of the most stringent gun regulations in the country, but they’ve fared reasonably well under the current legal framework. At least four justices seem ready to change that framework, though, potentially by evaluating laws based solely on “text, history, and tradition” rather than any consideration of contemporary costs and benefits. That kind of change could call some of New York’s regulations into question: restrictions on “assault weapons” and high-capacity magazines, for example, or those requiring certain kinds of permits to carry guns in public.
Robert Spitzer: Based on the 10 cases up for appeal, at least three current New York gun laws could be in jeopardy: the assault weapons ban, restrictions on large capacity magazines, and the state’s “may issue” concealed carry law. All of these measures have withstood legal challenges in the past – including the 2013 NY SAFE Act – but a new court ruling could easily change that.